Mitchell v. Spataro

In an action to recover damages for personal injuries, etc., based on theories of medical malpractice and breach of contract, plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated August 5, 1981, as granted the cross motion of defendants Spataro and the Long Island Orthopaedic Group, P. C., to dismiss the second cause of action (which alleged a breach of contract) as to them. Order affirmed insofar as appealed from, with $50 costs and disbursements. “The second cause of action is legally insufficient because it is merely a redundant pleading of [the injured] plaintiff’s malpractice claim in another guise, an attempt to plead as a contract action one which is essentially a malpractice action.” (See Monroe v Long Is. Coll. Hosp., 84 AD2d 576.) It is well settled that a breach of contract claim in relation to the rendition of medical services by a physician will withstand a test of its legal sufficiency only when based upon an express special promise to effect a cure or to accomplish some definite result. (Monroe v Long Is. Coll. Hosp., supra; Liebler v Our Lady of Victory Hosp., 43 AD2d 898; Carr v Lipshie, 8 AD2d 330, affd 9 NY2d 983; Robins v Finestone, 308 NY 543.) Since plaintiffs have failed to adduce proof of such an express special promise and since the damages sought are essentially for pain and suffering and other noneconomic loss, the contract claim was properly dismissed. Titone, J. P., Mangano, Weinstein and Boyers, JJ., concur.